child’s rights prevail.152 This leads to the third and final thesis.
C. Third thesis: best interest of the child may outweigh
The third thesis is the “Limited Parental Rights Thesis” and
is described as parental rights with thresholds.153 Under this thesis,
parental rights may be infringed upon under two conditions: first,
when there is a conflict between the best interest ( i.e., rights) of the
child and the rights of the parent; and second, if doing so will bring
about a large enough benefit to the child.154
As applied to parental rights versus children’s rights, usually
both of the above overriding conditions are present. When a child is
initially removed from the home in a juvenile case, the executive
branch of the government—the Department of Human Services or
the District Attorney’s office—must prove to the court that there is a
reasonable suspicion that the child’s health, welfare, or safety may be
in imminent danger.155 An example would be the use of corporal
punishment. It is a general consensus among judges that if the
corporal punishment rises to the level of leaving bruises or
lacerations, then the child’s right outweighs the right of the parents to
discipline their child because of the abuse and neglect exception to
parental rights.156 Unless the use of corporal punishment raises a
152 Matter of Welfare of Tarango, 595 P.2d 552, 555 (Wash. Ct. App. 1979)
(holding that when the rights of the parent and the welfare of the child are in
conflict, the welfare of the child must prevail); see also S.C. Dep’t of Soc. Servs. v.
Roe, 639 S.E.2d 165, 168 (S.C. Ct. App. 2006) (holding that the interest of the
child shall prevail if the child’s interest and the parental rights conflict).
153 Brennan & Noggle, supra note 3, at 8.
154 Id. at 8-9. This condition is met when the child’s needs are not being met, which
leads to or potentially could lead to imminent harm or danger to the child. “So long
as the child is not being harmed, parental rights are generally not to be infringed
merely to provide some marginal benefit for the child.” Id.
155 See, e.g., Arce v. Cnty. of L.A., 150 Cal. Rptr. 3d 735, 746 (Ct. App. 2012);
Idaho Dep’t of Health & Welfare v. Doe, 244 P.3d 247, 250 (Idaho Ct. App. 2010);
N.J. Div. of Youth & Family Servs. v. R.D., 23 A.3d 352, 354 (N.J. 2011).
156 Judges may not believe in corporal punishment. Some may not have raised their
children with the use of corporal punishment. This is a valid value judgment on
behalf of any parent. However, to date this author is unaware of any statutes or
court findings where the use of corporal punishment alone rises to the level of state